Basavraj vs Vikramsingh

Rathnakala, J.—Though this petition is listed for admission, with consent, it is taken up for final disposal.

This petition is filed invoking the provisions of Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ''Cr.P.C., for brevity) to quash the order passed by the jurisdictional Magistrate in ordering to return the complaint to file the same before the jurisdictional Court and also in rejecting the applications filed by the petitioner herein for re-admission of the complaint. Briefly stated, the petitioner herein is the complainant before the Magistrate Court, who had filed a complaint under Section 200 of Cr.P.C. against the accused in respect of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ''the N.I. Act'', for brevity).

The complaint was filed on 30.12.2011. The learned trial Judge took cognizance of the matter, ordered to register the private complaint, recorded the sworn statement and found merit in the complaint allegations, procured the accused, recorded his plea and posted the case for evidence of the complainant. On 08.07.2014, the complainant filed his affidavit evidence and gave his further evidence and marked his documents. On his request, the case was adjourned for further evidence. In the mean time, in view of the judgment passed by the Apex Court in Dashrath Rupsingh Rathod Vs. State of Maharashtra, , the learned Magistrate ordered to return the complaint and the documents. Accordingly, the complainant obliged, and received the complaint with the documents on 14.10.2014. However, on 30.10.2014 he moved an application to recall the order dated 30.09.2014 and restore the complaint. In the light of the judgment of the Apex Court, noted supra, wherein it has been held in para 20 as under:

"Consequent on considerable consideration we think it expedient to direct that only those cases where, post the summoning and appearance of the alleged Accused, the recording of evidence has commenced as envisaged in Section 145(2) of the Negotiable Instruments Act, 1881, will proceeding continue at that place. To clarify, regardless of whether evidence has been led before the Magistrate at the pre-summoning stage, either by affidavit or by oral statement, the Complaint will be maintainable only at the place where the cheque stands dishonoured. To obviate and eradicate any legal complications, the category of Complaint cases where proceedings have gone to the stage of Section 145(2) or beyond shall be deemed to have been transferred by us from the Court ordinarily possessing territorial jurisdiction, as now clarified, to the Court where it is presently pending. All other Complaints (obviously including those where the accused/respondent has not been properly served) shall be returned to the Complainant for filing in the proper Court, in consonance with our exposition of the law. If such Complaints are filed/refiled within thirty days of their return, they shall be deemed to have been filed within the time prescribed by law, unless the initial or prior filing was itself time barred."

The learned Magistrate rejected the application which order is impugned in this petition. The learned Judge also noticed that in the present case the stage of the case has not reached upto Section 145(2) of the N.I. Act and the complainant had already received the complaint and the documents and the complaint has to be presented before the proper jurisdiction of Court, which was the drawer Bank/Syndicate Bank, Kolhapur.

Sri M.H. Patil, learned counsel for the petitioner submits that in fact he had filed his affidavit evidence and also marked his documents and the judgment of the Apex Court could not have been applied in this case for return of the complaint.

Admittedly, as on the date, the complaint was ordered to be returned, the complainant had not placed on record his entire examination-in-chief evidence. He had filed his affidavit evidence and gave his oral sworn testimony about the filing of his affidavit evidence and marked his documents, without closing his examination-in-chief evidence he took time. Section 145(2) of the N.I. Act, which is vexed in this petition reads as under:

"The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein"

A plain reading of this sub-section would drive an inference that it is the stage of evidence of witnesses for the complainant and defence evidence (after completion of complainant''s evidence). That being so, the learned Magistrate has not committed any error in returning the complaint at the stage of examination-in-chief evidence of the complainant.

In that view of the fact the petition lacks merits. Accordingly, petition is rejected. However, thirty days time is granted to the petitioner to present the complaint before the Court of proper territorial jurisdiction within 30 days from the date of obtaining certified copy of this order.